Page 3853 - Week 09 - Thursday, 25 August 2011
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operative’s identity where the operative is a witness in a court proceeding by preventing the disclosure of the operative’s identity.
The bill also ensures that in protecting the safety of undercover operatives, the rights of the defendant in a criminal proceeding are not infringed.
The effect of a witness identity protection certificate is to prevent the disclosing of an operative’s true identity in the context of a proceeding, engaging the right to a fair trial under the Human Rights Act 2004.
In addition, the rights afforded to a defendant in criminal proceedings under the Human Rights Act mean that the defendant is to have the opportunity to examine prosecution witnesses.
The bill ensures that these rights are subject only to reasonable limits and are justified and proportionate to the purpose of the bill.
Concealing the true identity of undercover operatives, and thereby limiting the right to a fair trial and certain rights in criminal proceedings, achieves two important purposes which are in the public interest. Firstly, the personal safety of witnesses, or other people connected to the witness, such as his or her family, is protected. Secondly, the efficacy of undercover operations is preserved.
While a witness identity protection certificate prevents the disclosure of an operative’s true identity in a court proceeding, this limitation on the right to a fair trial and rights in criminal proceedings is reasonable and justified and promotes a number of rights enshrined in the Human Rights Act.
The primary purpose of the limitation is to protect the personal safety of witnesses, or others connected to the witness, which promotes the right to protection of the family and children, at section 11 of the Human Rights Act, as the families of witnesses are protected by concealing the true identity of the witness. It also engages and promotes the right to privacy and freedom of movement as it protects the operative’s right not to have his or her privacy, family and home interfered with unlawfully and his or her right to choose his or her residence in the Australian Capital Territory.
The limitation on the right to a fair trial and rights in criminal proceedings is reasonable and only goes as far as is necessary to protect the personal safety of witnesses and their families. The witness in the proceeding to which a witness identity protection certificate applies is not “anonymous” in the broad sense of the word as they appear in person to give evidence, they can be cross-examined and their demeanour can be assessed by the court. The limitation is proportionate as it only goes so far as to require that their true name and address are withheld. The bill does not propose that the operative will be a “secret” or “anonymous” witness who does not appear before the court. Nor does it propose that the operative give evidence in court from behind a screen or using voice distortion technology.
Both the House of Lords and the European Court of Human Rights have acknowledged that there may, in certain circumstances, be a need to limit human
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